Wednesday 8th February 2017
(7 years, 10 months ago)
Grand CommitteeNeighbourhood Planning Act 2017 View all Neighbourhood Planning Act 2017 Debates Read Hansard Text Amendment Paper: HL Bill 86-IV Fourth marshalled list for Grand Committee (PDF, 105KB) - (6 Feb 2017)
Lord Framlingham (Con)
My Lords, I had not intended to speak in this debate but I do so in support of the amendment, mainly because I am very fond of pubs. I am a great pub user and always have been—paying great tribute to Adnams bitter in Suffolk is, I think, in order.
Perhaps it is necessary for us to appreciate just how important the pub is in village life. The local post office is too, but we are talking about pubs. In modern terms, you either get that or you do not, but it is absolutely crucial. In my village of Mellis in Suffolk, we have a pub called the Railway Tavern. Many years ago it broke away from the brewery. That was a problem because it had to buy all its alcohol from it, which affected its profitability. That did not work and it was boarded up for a while. It was then bought, but that landlord did not make it work and it was boarded up again. Then the village got together and, with the present landlord, ran it for two to four weeks to get it going—such was the village feeling about the pub. It is now going well and Frank, the present landlord, does an extremely good job. The pub does everything: it has wi-fi, fish and chips regularly on a Friday night and quizzes. It really is the heart of the village.
Noble Lords have referred to the number of village pubs there used to be. We could all talk about our towns and villages that used to have 20 pubs and now have only one. We have reached the stage where this is very serious. Those who feel strongly about the role of the pub in towns and villages—about how crucial they are to village life—must stand up for them. If this amendment will do anything to make it a little more difficult to transform a pub quickly and commercially into something else, I am all for it. I therefore very much support the amendment.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I thank noble Lords who have participated in the debate on Amendments 60 and 61. I also thank those noble Lords who attended the briefing session this morning on the White Paper and I urge others to pick up a copy from the Printed Paper Office. We will put on further sessions on it but as I had undertaken to hold a session before Report, I thought it was important that we did so. I am very grateful to my right honourable friend the Secretary of State and the Minister of State, Gavin Barwell, both of whom were there. As I said, we will have more sessions; in the meantime the consultation on those items we are consulting on is open until 2 May.
I thank the noble Lord, Lord Kennedy, the noble Baroness, Lady Deech, and the noble Lords, Lord Cameron and Lord Shipley, for speaking so eloquently on Amendments 60 and 61. I will concentrate first on what we have done and are doing, then look at the substance of the debate and pick up the points made by noble Lords. I do not think we have had this much interest on anything in the Bill, and certainly not since we debated ancient woodlands. These things are clearly central to our well-being and life in our country.
Noble Lords have raised a number of concerns about the loss of valued community pubs. I would therefore first reassure the Committee that we recognise the role that pubs can, and do, play in local communities. They provide valuable local hubs that strengthen community relationships and encourage wider social interaction, as well as contributing to our wider economy. The nature of the pub has changed massively in our lifetime; they are very different now from 20 or 30 years ago, when I think many were still primarily drinking establishments. Those are very much the exception now. It is now not at all unusual for people to go to a pub for a meal, and come out not having had an alcoholic drink. For a party of four or five, one person will perhaps be nominated as driver and others may just have a glass of wine with a meal. We can all see that it is very different from the way it used to be.
The importance of the pub is recognised in paragraph 70 of the National Planning Policy Framework, which requires local planning authorities:
“To deliver the social, recreational and cultural facilities and services the community needs”.
In doing so, it says that those authorities should,
“plan positively for the provision and use of … community facilities (such as … meeting places, sports venues”,
and “public houses”. Before turning to the detail of the amendments, I take this opportunity to set out the important steps we have already taken to support valued community pubs.
First, alongside Power to Change, an independent charitable trust that supports community businesses across England, we are co-funding the “More than a pub” community pub business support programme. This will provide £3.62 million of grants and loans to enable up to 80 communities to buy their pubs between 2016 and 2018. We also recently announced funding of £50,000 to support the organisation Pub is the Hub’s work on community-focused pub-based services. This will help more pubs diversify to provide essential community services, which would otherwise have been lost. As an example, the Codrington Arms in Gloucestershire recently reinstated the local post office and village shop by utilising an outhouse on the premises of the pub, which is to be applauded.
Communities can also use the powers given to them through the community right to bid to list their local pub as an asset of community value. To date—I think the noble Lord, Lord Shipley, has already given this figure—local communities all over England have listed nearly 4,000 assets, of which 2,000 are pubs, so I would say that this has been successful. Views have differed; I think the noble Lord, Lord Kennedy, indicated that he was not as impressed by that as others have been. We will continue to listen to evidence on the operation of this legislation and examples of good practice. It would be helpful if those noble Lords who said that the process is complicated or costly, which I do not accept although I do not have evidence to counter it, were able to come up with some evidence that it is costly or difficult—or even that communities are unaware of it. I would be interested in that. Separately, we scrapped the beer and alcohol duty escalators and froze beer duty in Budget 2016, having reduced it in each of the three preceding Budgets.
I would like to respond in more detail to the noble Lords’ amendments. Both Amendment 60 and Amendment 61 seek to remove the permitted development rights allowing a pub to change to a restaurant, financial or professional service or shop, or to be demolished. This would be for all pubs and mean that a planning application would be needed in all cases. Noble Lords will, I am sure, be familiar with the important changes that we made on 6 April 2015. These were precisely to remove permitted development rights from pubs which are valued community assets, so that a decision in those cases would be made at local level. From this date, permitted development rights allowing the change of use or demolition of pubs are removed in respect of pubs and other drinking establishments which the community has demonstrated it values by nominating them as an asset of community value.
Permitted development rights therefore do not apply for as long as the pub is nominated or listed as an asset of community value. This means that a planning application is then required, allowing for local consideration and providing an opportunity for the local community to put forward its views to the planning authority. To guide decisions in these cases, it is important that local planning authorities have relevant policies in place in line with the National Planning Policy Framework.
I therefore urge local communities to come forward and nominate their valued community pubs. The community in Charing did this fairly recently and successfully prevented a change of use of its pub. The noble Lord, Lord Tope, referred to an example in his community, too. I say in passing that there is separate protection for historic buildings. If a pub qualifies on that basis, that is in addition to the normal planning requirements. That would apply to quite a lot of village pubs, although I accept that not all pubs would qualify in that way.
If there are local concerns about the prospect of a pub that is not nominated or listed changing use under permitted development rights, the local planning authority can make an Article 4 direction—the noble Lord, Lord Shipley, mentioned the Wandsworth example. A direction can be made in respect of an individual pub or pubs in an area. We consider that this approach provides valuable protection while avoiding blanket regulation, which would add bureaucracy and costs to all pubs.
Although it is not a declarable interest, I should say that in another life, when I was in the National Assembly for Wales, I was the co-chair of the Cross-Party Group on Beer and the Pub. Before someone trails my biography, finds that and says, “You didn’t mention that”, I mention it now. So I speak with a bit of experience of visiting pubs—mostly in Wales, but not exclusively. There are many thriving pubs that are worthy of protection. When you have to queue at the bar to get a drink or order a meal, that cannot be because they are doing badly. There are, on the other hand, pubs—I can think of many, although of course I will not name them—where you walk in and you know straightaway that it is in trouble. The person behind the bar looks indifferent. The pub does not do food; it may do a bag of crisps, but that is about it. I cannot see why we should seek to protect such pubs. They are often in dreary buildings—it is just the feel of the place.
That said, there are many pubs of which you think, “This is an important, integral part of the community”. I have been in community pubs that do a range of things; there may be a citizens advice bureau, a visiting library or the village shop. When you speak to the people who go there in the evening, you find that some did not go until it started to do all these things. Some people past the retirement age who would not have set foot in a pub when they were younger go there and help with the meals, for example. They just generally like the life that is there. That applies to young people, too. I have seen this. The nature of the pub is changing. Some pubs are, as I said, an integral part of the village. I associate myself with what was said about the closure of a village shop, post office or pub. That often excites interest from the community, because these things are community assets. I understand the point that is being made.
Let me turn to some of the comments that have been made. The noble Lord, Lord Cameron, talked about the vital glue that holds a community together— entrepreneurial flair is needed and engendered in some communities, while there are other communities where that is just not happening. The noble Baroness, Lady Deech, talked about the cement for communities; again, I understand the point that is being made. The noble Lord, Lord Tope, correctly said that the protection as a community asset is only for five years. I find it hard to believe that successful community pubs will not know that they have to reapply. They will be aware of that. After you have made the initial application, it will not be difficult to make the reapplication five years on, if that is still appropriate. My noble friend Lord Horam talked about the historic connection of the Conservative Party with the brewing industry. My noble friend Lord Young has asked me to make it absolutely clear, as I do, that he has no connection with the brewing industry—nor do I, in a financial sense. We now have that on the record.
Lord Kennedy of Southwark
My Lords, we have discussed this group of amendments for over an hour, so I feel that we are getting close to “closing time” on it. However, I wish to make a few brief comments. I join the noble Lord, Lord Cameron of Dillington, in paying tribute to Pub is the Hub. It is a great organisation for the very reason it has kept village pubs going and offering all sorts of other services. That is an excellent initiative. I first saw a pub being used as a corner shop, post office and other things in the Republic of Ireland. Many pubs in Ireland—or bars, as they are called there—do that very successfully.
CAMRA is a great organisation. I am sorry that it appears to have irritated the noble Lord, Lord Hodgson, perhaps in a previous life. CAMRA’s website used to boast that its membership was bigger than that of any political party in Britain. It now says that its membership is bigger than all but one, that being the Labour Party. That has involved us in all sorts of other issues that I shall not enter into today. However, I noted that interesting change on CAMRA’s website.
I very much agreed with most of the comments made by many noble Lords on this issue. However, the noble Lord, Lord Hodgson, may have misunderstood our amendment. Nothing in it seeks to keep open a failing pub, and noble Lords seemed to support that. A failing pub will close. I accept the point he made about how things have changed. I grew up in south London and when I was a young boy there was a pub on every corner of almost every street in my area. Most have gone. One or two are now hotels and some have been converted into houses or shops. The noble Lord is absolutely right that life has changed in that regard. He was also right about supermarkets. Certainly, on a bank holiday weekend, you cannot get past the beer mountain as you walk in the door. Equally, people have other leisure activities, so certainly pubs have changed. However, I still think that a successful community pub, whether in a city, town or village, which works well deserves our support. There is nothing in the amendment about pubs that are not successful.
A Leicester City v Derby match has been mentioned. I am interested in the result of that match as the winner will get the pleasure of playing Millwall at The Den in the next round of the FA Cup. I know that people will watch that match with interest tonight in pubs all over Lewisham. They will perhaps do so in a traditional pub such as The Rising Sun. However, further down the road from that pub is The Talbot which serves excellent food, so different pubs cater for different uses. It is important to come back to this issue.
As regards the ACV issue, I am sure that when the Minister talks to representatives of CAMRA they will be able to give him examples of councils which, for whatever reason, do not want to use this power or have frustrated local publicity campaigns. I can give him the relevant names. I hope that the Government will consider how they can deal with that as it is an issue.
The other point is about being able to raise finance. If a pub is listed as an asset of community value, and the landlord or the owner wants to raise some finance but finds problems as a result of being listed, that is an unintended consequence. I hope that CAMRA can give examples of that and we can look at how to change it. It cannot be right that listing your local pub could cause the business problems. We need to deal with that as well.
I thank other noble Lords, including the noble Lord, Lord Bourne, for his response. I look forward to meeting CAMRA and hopefully I can talk to the noble Lord between now and Report. As I said at Second Reading, I fully intend to bring this or a similar amendment back on Report and will be very likely to push it to a vote unless we get some movement from the Government. We have raised some important issues, and as the noble Lord will have seen in today’s Grand Committee, we have support all around the House on this. Given that, I beg leave to withdraw the amendment.
Lord Bourne of Aberystwyth
If the noble Lord has information independently of CAMRA ahead of the meeting, that would be useful, to avoid delaying things, as CAMRA might not come with that information. I should also have noted a rare moment of accord—actually not that rare—with the noble Lord, Lord Beecham. Leicester City is my first team, and has been since childhood. I look forward to the occasion, after we beat Derby, when we come to Millwall. Perhaps we might share the experience over a pint of beer on that occasion.
Lord Scriven
My Lords, I have a little concern with the amendment—not with the thrust of where it is trying to go, but the way it is worded and the implications of proposed new subsection (2), which says:
“Local planning authorities must provide any necessary advice on national and local infrastructure projects as requested by neighbourhood plan makers”.
That seems to me to be a little top-down. If they have information, it should be automatically given to those making the neighbourhood plan. To paraphrase the words of a former American Defense Minister, sometimes there are the known knowns, and sometimes unknown knowns. I am sure this is not the intention of the amendment, but it needs to be a bit stronger in terms of automatically giving the right to the neighbourhood plan makers rather than them having to ask for it. I hope that those who tabled the amendment will reflect on that.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Kennedy, for raising this matter, and the noble Lord, Lord Scriven, for his intervention on Amendment 64A. Noble Lords have raised a valid issue. Large-scale national infrastructure projects are, of course, crucial to the economic health of the nation. We must always recognise that national infrastructure will have impacts, positive and sometimes negative, on local areas. Our existing legislation provides planning policy and guidance together with any endorsed recommendations made by the National Infrastructure Commission and provides the means for ensuring that local planning authorities and neighbourhood planning groups are aware of national infrastructure projects in their area.
The importance of national infrastructure is already recognised at the local level. The National Planning Policy Framework in paragraph 21 and planning guidance provide that the local planning authorities should identify the need for strategic infrastructure in the policies in their local plans. Once adopted, local plans form part of the statutory development plan for the area, which is the starting point for planning decisions. Further to this, paragraph 162 of the framework makes it clear that local planning authorities consider and take account of the need for strategic infrastructure, including nationally significant infrastructure within their areas.
On 24 January, the Government published the National Infrastructure Commission framework document that sets out how the commission will operate, making it clear that the commission has operational independence to make recommendations as it sees fit, and on the basis of robust evidence will advise government on all sectors of economic infrastructure, operating independently and at arm’s length from government. This includes discretion to engage with stakeholders as it sees fit, and to address commission recommendations to the most appropriate bodies, including local planning authorities.
I value, as do the Government, the support of the noble Lord, Lord Adonis, as chairman of the National Infrastructure Commission, and of my noble friend Lord Heseltine as a commissioner in helping to set out national infrastructure policies. Many of the infrastructure projects that may be proposed by the National Infrastructure Commission will in due course need to seek development consent as nationally significant infrastructure projects under the Planning Act 2008. This planning regime already requires significant local engagement and consultation; applicants are required to engage and consult local communities and local authorities from the outset, with local authorities having a role in assessing the adequacy of that consultation. Once an application for consent has been accepted, it will proceed to an examination. Anyone can make representations to the examining authority on any aspect of the project; local authorities are also able to submit local impact reports that set out the impact of the proposed infrastructure in their local area.
I hope that this reassures noble Lords that sufficient mechanisms are in place so that local authorities and local communities will be able to engage with national infrastructure projects, both when they are being considered by the National Infrastructure Commission and when they come forward through the planning process. I think that the noble Lord, Lord Adonis, and my noble friend Lord Heseltine are very happy with how things are operating. As I say, they are at arm’s length; they are not an arm of the Government.
I turn to the specific part of the amendment on advice to those preparing a neighbourhood plan. As I explained during our debates last week, local planning authorities have an existing duty to advise or assist neighbourhood planning groups. Clause 5 will ensure that authorities must set out the support that they can provide in a more transparent way. When a national infrastructure project is relevant to a neighbourhood planning group, we would expect the local planning authority to advise the group accordingly.
I appreciate that this is a probing amendment, but I say to noble Lords who have participated in the debate and more widely that we do not think that this is the way forward, and I urge the noble Lord, Lord Kennedy, to withdraw his amendment.
Lord Kennedy of Southwark
I thank the noble Lord, Lord Scriven, for his contribution to the debate. I fully accept the points that he makes; he said what I want to do here but more succinctly and clearly. I also thank the Minister for his response to the amendment. I shall reflect on what he says and may or may not bring the amendment back on Report. I see the point that he makes. We are raising the issue of how the National Infrastructure Commission deals with local areas and planning authorities. I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I shall speak to Amendments 69 and 75. They are pretty much self-explanatory. The former simply requires that guidance should be provided when there are temporary rights that can be granted at the same time over the same piece of land. Amendment 75 is rather more important because it provides that the section should not come into force until guidance has been published in relation to it. I assume that is the Government’s intention, and I hope they will accept that amendment.
Lord Young of Cookham (Con)
My Lords, the co-pilot is back in charge. I thank the noble Lords, Lord Shipley and Lord Beecham, for tabling their amendments to Clause 14. The noble Lord, Lord Shipley, made it clear that his amendment was probing. Before I move on to discuss these and the government amendments to this clause, it may be helpful if I begin with a brief description of Clauses 14 to 26, which introduce the new temporary possession power.
All acquiring authorities may need to enter and use land for a temporary period. For example, they may require land to store materials for a scheme or to provide access to a construction site, as the noble Lord, Lord Shipley, explained. The problem is that, currently, only certain acquiring authorities have temporary possession powers—for example, under special Acts which are needed for very large schemes such as the Crossrail Act 2008. Crucially, compulsory purchase orders cannot authorise temporary possession. There is no good reason for this difference, and it is unfair to those who do not have the powers. Clauses 14 to 26 seek to create a level playing field by giving all acquiring authorities the same power to take temporary possession of land. It may also be in the interests of those on the receiving end of a CPO to have the possibility of being deprived of their land temporarily rather than permanently.
In giving acquiring authorities this power, we shall ensure that those whose land is taken are fairly compensated and that there are appropriate safeguards in place to protect their interests. That is set out in Clause 19. For example, temporary possession will have to be authorised in the same way as compulsory acquisition. Also, in certain circumstances, owners and occupiers will be able to require the acquiring authority to acquire the land permanently instead of occupying it on a temporary basis, if that is what they want.
Government Amendments 66, 67, 70, 71, 74 with Amendments 105 and 106 and amendments to other clauses, which I shall deal with later, remove the requirement for the temporary possession to be linked directly to a scheme for the acquisition of other land either by compulsion or agreement. Decoupling is the word that the professionals have been using. The reason for this change is that there may be situations where an acquiring authority needs to take only temporary possession of land. For example, an acquiring authority may need temporary possession of land for a contractor’s compound when they have been able to buy all the land needed for their scheme by agreement, or they may need access to land temporarily to maintain a highway. That is the impact of some of our amendments.
Government Amendments 105 and 106 are consequential on Amendment 66; they simply remove definitions of terms that are no longer required. Non-government Amendments 65, 68 and 72, which were tabled by the noble Lord, Lord Shipley, also seek to remove the requirement for the temporary possession to be directly linked to a compulsory acquisition scheme. I hope, therefore, that he will agree they are unnecessary in the light of the Government’s amendments.
On Amendment 69, tabled by the noble Lords, Lord Beecham and Lord Kennedy, I agree with the noble Lord that we need to ensure that the interests of leaseholders are adequately protected in introducing this new power. However, I believe that that amendment is not needed, because we have already built in a safeguard which would deliver the same outcome that is requested, but in a more flexible way.
Amendment 69 would restrict the temporary possession power so that it could never be used when a leasehold interest would have less than a year to run after the land was handed back, even if that was the preference of the leaseholder, the freeholder and the acquiring authority. It sounds counterintuitive to prohibit that. The effect of this amendment would be that, if the land was essential to the delivery of the scheme, the acquiring authority would instead be driven to exercising the more draconian power of compulsory acquisition of the land permanently. However, as I have said, we have already built in a safeguard for leaseholders, which I believe will achieve the outcome that noble Lords are seeking. The safeguard is in Clause 17(3), which allows leaseholders to serve a counternotice preventing the acquiring authority taking temporary possession of the land. On receipt of the counternotice, if the land is essential to the delivery of the scheme, the acquiring authority can proceed as if the land were subject to compulsory acquisition and take the land permanently. In these circumstances, the leaseholder would, of course, be compensated for both the value of his lease and losses caused by reason of being disturbed from possession of the land taken. I believe this is a neater solution, which gives leaseholders the flexibility to decide what is right for them.
Amendment 73, tabled by the noble Lord, Lord Shipley, seeks to clarify what will happen when a tenant’s land is subject to compulsory purchase. As government Amendment 103 seeks to do the same thing—although our approach is different—I will speak to both amendments together. Government Amendment 103 provides that the terms and obligations under the tenancy, with the exception of the payment of rent and the length of the tenancy, will be disapplied to the extent that the temporary possession prevents reasonable compliance with them. Any expenditure which a leaseholder incurs as a result of the temporary possession would be claimed back from the acquiring authority. The noble Lord’s amendment, in contrast, provides that all the terms and obligations are unenforceable for the period of temporary possession.
The reason we have disapplied the terms and obligations only to the extent that the temporary possession prevents reasonable compliance with them is that there may be circumstances in which only a small part of land subject to a lease is also subject to temporary possession. In these situations, there may be no easy way in which to separate out the terms that relate to the land subject to temporary possession from terms that relate to the remainder of the land.
The second point of difference is the exclusion of the payment of rent and the length of the tenancy. We have done this because, again, where only a small part of a tenant’s land is required, making these terms unenforceable could result in a tenant having to pay an uncertain portion of the rent for the land not subject to temporary possession. The loss that would be compensated is not the rent payable for the existing lease, but any rent payable for alternative premises, as that is the loss that has been caused. Under the Government’s amendment, responsibility for paying the rent for the land under temporary possession remains with the tenant. However, the tenant will be entitled to claim compensation from the acquiring authority in relation to any expenditure which a leaseholder reasonably incurs as a result of the temporary possession.
The other point of difference with the noble Lord’s amendment is to do with proposed subsections (4) to (6), which make provision with regards to those who have protected tenancies under the Landlord and Tenant Act 1954. Occupiers with such a protected tenancy have a right to apply for the grant of a new tenancy, provided they remain in occupation. However, if their land is subject to temporary possession they will no longer be in occupation and will lose this right. Government Amendment 103 and non-government Amendment 73 both seek to preserve this right to renew the tenancy. However, in doing so, the government amendment imposes a requirement for the tenant to confirm in writing to both the landlord and the acquiring authority that they intend to resume occupation after temporary possession. I think it is clear that both amendments are after the same thing: greater clarity for tenants and landlords as to what happens during the temporary possession period, including the treatment of rent.
Finally, in this group, I will respond to Amendment 75, tabled by the noble Lord, Lord Beecham. The noble Lord made a very valid point, which I entirely agree with, that where the Government intend to provide guidance on the use of a new power, that guidance should be available by the time the provisions come into force. That is, of course, the Government’s intention. The particular element of the temporary possession provisions that the noble Lord has identified is in Clause 15(3)(a), which will allow both temporary possession and compulsory acquisition powers to be obtained concurrently for the same piece of land.
Although this so-called doubling-up of temporary and permanent powers can be authorised, it will not give acquiring authorities carte blanche to double up in all cases. It would not be fair to claimants if there was not a very good reason for an acquiring authority to make an order which included this doubling-up. It would not be wise to anticipate precisely what might be in the guidance at this point, but as I have just said, there would be a high bar to justify doubling-up. The most likely circumstances would be linear transport projects where the final design is not complete by the time compulsory powers are obtained. We know of a handful of orders in the last dozen years where this has been authorised, such as the Docklands Light Railway and the Nottingham tramway.
As for compulsory acquisitions, each case would be considered on its individual merits at a public inquiry before an inspector, and considered by the relevant Secretary of State, before a decision was made whether doubling-up was justified in the public interest.
I hope that I have been able to reassure the noble Lord, Lord Beecham, with a firm undertaking that the Government will be seeking views on the draft guidance and will publish it before these provisions come into force. I apologise to the Committee for a somewhat lengthy oration on these amendments, but there are quite a few of them. When the time comes, I will move government Amendments 66, 67, 70, 71, 74, 103, 105 and 106. In the meantime, I ask the noble Lord to withdraw Amendment 65 and for noble Lords not to press Amendments 68, 69, 72, 73 and 75.
Lord Shipley
I am grateful to the Minister for his reply. I draw his attention to two facts. First, the Government have brought 34 amendments for consideration this afternoon, this Bill having passed in the other place. Secondly, some of them were tabled quite late, and after I tabled my amendment. I understand the need for all this to be brought together for Report, so I beg leave to withdraw the amendment.
Lord Young of Cookham
(a) has a power conferred by an Act to acquire land compulsorily (with or without authorisation from another person), or(b) is or has been, at any time, otherwise authorised to acquire land compulsorily.”
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
My Lords, we now move to the second group of amendments on temporary possession. Clause 15 deals with the procedure for authorising temporary possession of land, requiring it to be authorised by the type of authorising instrument that would be required for the permanent acquisition of land—for example, a compulsory purchase order.
Government Amendments 76 to 79 remove redundant wording in Clause 15(2) as a consequence of government Amendment 66 to Clause 14(1). Government Amendments 80 to 82 amend Clause 15(3) to clarify that the same land may be subject to both temporary possession and compulsory acquisition powers concurrently. We debated the need for guidance relating to the clause a moment ago on Amendment 75, tabled by the noble Lord, Lord Beecham, so I shall not repeat what I said about that. Government Amendments 83 to 85 and 87—the last also, happily, endorsed by the noble Lord, Lord Shipley—all remove redundant provisions in the context of the previous amendments. For example, Amendment 87 refers to “relevant land”: this is no longer needed because the concept of relevant land is removed by Amendment 66. I beg to move.
Lord Shipley
My Lords, Amendment 86 is in my name, and I want to ask the Minister a question. Clause 15 sets out the procedures for authorising temporary possession. It is not clear from the clause whether it is intended that there be a time limit for the life of a temporary power—for instance, three years for service of a notice post the confirmation of a compulsory purchase order. Do the three-year and five-year standards for compulsory purchase orders in statutory instruments apply, and does the power apply to post-construction maintenance during a defect period?
The Government’s amendments to remove superfluous words are helpful. I am not sure whether Amendment 87, which deletes subsection (7), is right—I am having second thoughts about it. I think it is right, but as the relevant land is the land required for the scheme, it seems appropriate to make it clear that temporary possession can be taken after action to secure the land required permanently. I would be grateful for the Minister’s comment.
Lord Young of Cookham
I may need to write to the noble Lord, Lord Shipley, about the specific issue he has raised on Amendment 87 and subsection (7) relating to relevant land. As I said, this is no longer needed, because the concept of relevant land has been removed by Amendment 66, with which we have just dealt. However, I will make some inquiries following his representations.
The noble Lord, Lord Shipley, has proposed in Amendment 86 that Clause 15(6) should be omitted. This is intended to be helpful clarification. It confirms that the authorising instrument—for example, a CPO—does not need to include the dates for any particular period of temporary possession. It would be difficult for an acquiring authority to do that, because it would not know the date of the confirmation at that stage. The cross-reference to Clause 16 points users to the provisions which specify the dates of temporary possession. The Government believe that there is no need for users of this legislation to be deprived of this clarification. He also asked a question about whether CPO powers would expire after a certain period. Again, I will write to him about this when I have made some inquiries. In the meantime, I hope that he will not move his Amendment 86.
Lord Young of Cookham
Lord Young of Cookham
Lord Shipley
My Lords, I shall speak to Amendments 89, 91, 92, 93 and 94 in my name. These five amendments relate to Clause 17, which makes provision for a person affected by temporary possession to serve a counternotice to limit the total period which the temporary possession can last to 12 months in the case of a dwelling and six years in any other case. Leaseholders can also serve a counternotice providing that the acquiring authority may not take temporary possession. Having received the counternotice the acquiring authority must decide whether to accept it, withdraw the notice or proceed to take the land permanently.
As drafted, Clause 17 seems unnecessarily complex. The hope is that the Government might be able to simplify it without losing any of its statutory force. Regarding Amendment 89, Clause 17 applies wherever an acquiring authority gives notice of intended entry on to land for a temporary period to a person who is either the freeholder of the land affected or a leasehold owner. The clauses that follow seem to have a different counternotice procedure, depending on whether it is a freeholder or a leaseholder. So in connection with Amendment 89, is there a need to distinguish between leaseholders and freeholders? This amendment and the consequential amendments seek to avoid that and therefore to simplify the clause.
Amendment 91 refers to Clause 17(3), which allows a leaseholder to give the acquiring authority a counternotice to prevent it taking temporary possession of the land. It appears that this right is not available to freeholders, who can serve only a counternotice limiting the period of temporary possession. Surely, this right should be available to freeholders. This amendment therefore seeks to clarify the matter by stating:
“The owner may give the acquiring authority a counter-notice which provides that the authority may not take temporary possession of the owner’s interest”.
We then have consequential Amendments 92, 93 and 94. Clause 17(10) states that nothing in that clause,
“prevents an acquiring authority acquiring land compulsorily after accepting a counter-notice or withdrawing a notice of intended entry”.
My question is: should a permanent acquisition be available for temporary land unless a counternotice has been served requiring a permanent rather than temporary acquisition? Clause 17(8) is relevant in this respect. Amendment 94 would therefore leave out lines 38 to 40 on page 15. The concern is that landowners could potentially face a period of six years of temporary possession with the acquiring authority then deciding to acquire the land permanently. In the interests of fairness, the land should surely have been acquired permanently in the beginning. Scheme promoters should know how they wish to use the land and whether it needs to be permanently acquired from the outset.
Lord Young of Cookham
My Lords, I thank the noble Lord, Lord Kennedy, for tabling his Amendment 88. I appreciate that his aim in doing so was to make things clearer, an ambition which I fully support. However, on this occasion I do not think that an amendment is necessary because subsection (7) provides that Clause 16 must be complied with,
“in relation to each subsequent period of temporary possession”.
That makes it clear that acquiring authorities can serve more than one notice. Having said that, this is the sort of thing that could usefully be covered in guidance. We will update our compulsory purchase guidance in light of the reforms in the Bill, and in the light of what the noble Lord has said, I will ask for this matter to be looked at again.
Amendments 89 and 91 to 93 deal with the counternotice provisions in Clause 17. These provisions are an improvement on the current temporary possession regimes, which have no counternotice procedure in them. I thank the noble Lord, Lord Shipley, for tabling his amendments. No one would be keener than I to simplify all this, if it were possible so to do. I doubt whether it would be realistic wholly to redraft this clause between now and Report but I endorse his sense of direction. He is quite right to say that there is a difference between the treatment of leaseholders and that of freeholders. This is because the Government believe that there could be a greater impact on leaseholders than freeholders when their land is subject to temporary possession, as the leaseholder may be left with a useless lease at the end of the temporary possession period—for example, when there is only a short period left to run on the lease. We considered this in debate on Amendment 69.
Clause 17(3) affords leaseholders additional protections in these circumstances by giving them the option to serve a counternotice, as the noble Lord, Lord Shipley, said, providing that an acquiring authority cannot take temporary possession of their land at all. However, no such issues arise for freeholders. The justification for the temporary possession of the land will have been carefully considered on its individual merits at a public local inquiry before an independent inspector and confirmed only where it is in the public interest.
Lord Beecham
I would not say that I was unduly disturbed, but I would be grateful if the Minister would comment on it.
Lord Young of Cookham
I am sorry for doing a disservice to the noble Lord.
Amendment 90, tabled by the noble Lords, Lord Beecham and Lord Kennedy, seeks to limit the period of temporary possession of land not occupied by dwellings to three years rather than the six years proposed in Clause 17(2). It is a matter of judgment whether one draws the line at three, six or nine years. The limit of six years is designed to give those affected greater certainty on the total period that non-dwelling land can be subject to temporary possession. Restricting the period to three years, as suggested, would limit the usefulness of this new power, as the lower the upper limit, the more likely it is that an acquiring authority would, on a cautionary basis, decide to take the more draconian and unnecessary route of compulsory, permanent land acquisition instead.
As I said, there needs to be a balance between giving acquiring authorities the power they need to deliver their schemes and ensuring that the interests of those whose land is taken are protected. We consider that an upper limit of six years strikes the right balance. It is an upper limit and, of course, in many cases temporary possession will be for far less time and the issue will not arise. Where possession will need to be for infinitely longer, acquiring authorities might go for compulsory acquisition in the first instance. I assure noble Lords that we can and will keep this under review as the new power begins to take effect. The regulation-making power in Clause 24 will allow the Government to make changes if required. With those assurances and explanations—and with apologies for trying to take a short cut—I ask the noble Lord to withdraw his amendment.
Lord Kennedy of Southwark
My Lords, I thank the noble Lord for his response in respect of Amendment 88. He is entirely correct that the intent of our amendment is just to get clarity as we debate the legislation. With compulsory purchase, I am conscious that there is the risk of lawyers getting involved at a later date and arguing about what something does or does not mean—although I know my noble friend is of course a lawyer, and I would not wish to deprive him of any work. I may be reading it incorrectly but Clause 16(7) appears to refer just to the one, single case. All my amendment sought was to add that you can have more than one. I may well be wrong about this, and the Bill may be perfectly correct, but I would not mind if the noble Lord and his officials looked at it once more before we get to Report. It may well be that guidance is all we need, but we are trying to get absolute clarity so that we do not get any problems in the future on this. Other than that, we are in complete agreement on this clause as it stands.
Lord Beecham
My Lords, speaking as a lawyer, although happily not practising, I see no need to amend the term “injury” to “damage”. Legally, injury embraces damage of all kinds. I would not go to extremes to defend the Government on this or any other occasion, but if the Minister felt disinclined to accept the amendment, I would not dissent from his judgment.
Lord Young of Cookham
I am grateful for this growing cross-party alliance on how to deal with one of the amendments. I shall deal with as much as I can in writing, but some government amendments are tucked into this group which I need to address.
I thank the noble Lord, Lord Shipley, for tabling his amendments, which, as he said, deal with compensation for temporary possession. Clause 19 provides that claimants will be entitled to compensation for any loss or injury which they sustain as a result of the temporary possession. Where the claimant is operating a trade or business on the land, they will be entitled to compensation for disturbance of that trade or business.
I turn to Amendment 95, for which the noble Lord has explained his reasons. I think this comes down to a difference in approach to drafting. The Government have used the term “loss or injury” instead of “loss or damage”, as the noble Lord has suggested. Both terms have been used previously. In this instance, the Government have opted to follow the precedent of Section 20 of the Compulsory Purchase Act 1965.
The important point is that both formulations have the same meaning. I am reinforced in my view by the recent intervention by the noble Lord, Lord Beecham.
On the second part of this amendment, adding,
“as a result of the temporary possession of the land”,
is unnecessary because subsection (1) makes the same point.
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
“Impact of temporary possession on tenancies etc
(1) Subsection (2) applies where an acquiring authority takes temporary possession under section 14(2) of land subject to a tenancy.(2) A person is not to be treated as being in breach of—(a) any term of the tenancy, or(b) any other obligation associated with the tenancy or the land subject to temporary possession,to the extent that the person cannot reasonably comply with the term or other obligation as a result of the temporary possession.(3) Subsection (2) does not affect terms or obligations about—(a) the length of the tenancy, or(b) the payment of rent.(4) Subsection (5) applies where—(a) an acquiring authority takes temporary possession of land subject to a tenancy to which Part 2 of the Landlord and Tenant Act 1954 (security of tenure for business tenants) applies immediately before the period of temporary possession,(b) the tenancy expires during the period of temporary possession, and(c) prior to the period of temporary possession the tenant notifies in writing both the acquiring authority and the landlord that the tenant intends to resume occupation of the land after the period of temporary possession.(5) For the purposes of Part 2 of the Landlord and Tenant Act 1954 the tenant is to be deemed to continue to occupy the land in accordance with the tenancy mentioned in subsection (4)(b), and any tenancy which succeeds that tenancy, despite the period of temporary possession.(6) But if the tenant notifies in writing both the acquiring authority and the landlord that the tenant no longer intends to resume occupation of the land after the period of temporary possession subsection (5) ceases to apply.(7) In this section, “tenancy” includes a sub-tenancy.”
Lord Beecham
My Lords, I support the amendment in the name of the noble Baroness, Lady Parminter, and speak to Amendment 104A which requires the Secretary of State and Welsh Ministers to make provision for the reinstatement of land at the end of a period of temporary possession. This is not drafted particularly for the benefit of the residents of Aberystwyth or places in the vicinity; it stems from the report of the Delegated Powers and Regulatory Reform Committee which draws attention to a number of issues, only some of which are embodied in this amendment.
In dealing with the issue mentioned in Amendment 104A, the committee regarded it as inappropriate to leave the discussion of whether or not to include provisions about reinstatement in the regulations to the Secretary of State and Welsh Ministers. Hence, it recommended that the clause should be amended to impose the duty referred to in the amendment. However, that was not the end of the committee’s concerns. In particular, it also took issue with Clause 24(2)(a), which it regarded as,
“inappropriately wide and should be redrafted to reflect the narrow policy intention referred to in the DCLG document which explained the power to modify provisions”.
In particular, the committee felt that the power goes much further than the declared objective in the policy document and,
“it would enable the regulations to make substantial changes to Clauses 14 to 26 in a wide range of cases, for example, by excluding the provisions about compensation”.
I confess that the document, only having reached us at the end of January, shortly before the amendments were drafted, ought to have been subject to an amendment specifically dealing with that issue. I do not expect the Minister to respond immediately, but I hope that, before Report, he will indicate whether the Government would be minded to accept the redrafting recommendation referred to by the Delegated Powers Committee. If not, I give notice that we will remedy the omission this evening and table an appropriate amendment.
The committee was clear about the issue that I have raised, but it also makes a more general point about the Secretary of State and Welsh Ministers exercising this novel power, which could potentially have far-reaching consequences without first being required to consult interested parties. It therefore considered a consultation duty even more important, in view of the provision dispensing with the House’s hybrid instruments procedure. That raises issues about secondary legislation that have so often been raised. As I say, I would not expect the Minister to respond to something of which he did not have notice by way of an amendment tonight. I hope that the matter can be resolved en route to Report, but reserve the right to table amendments if it cannot be.
Lord Young of Cookham
My Lords, I shall deal first with the point that the noble Lord, Lord Beecham, has just made. Of course, I have read the report of the Delegated Powers and Regulatory Reform Committee, and there are three relevant recommendations relating to this Bill, two of which he mentioned. We take this very seriously; we are considering all three recommendations very carefully, and intend to respond before Report, so I hope that the nuclear option mentioned by the noble Lord may not be necessary.
I turn to Amendments 104, 104A and 129B. Clauses 14 to 26 of the Bill set out the broad framework for how the temporary possession power will work, establishing protections and providing for the payment of compensation. Further technical provisions will be necessary for the implementation of the temporary possession power. Clause 24 gives the Secretary of State the power by regulations to make further provision in relation to the authorisation and exercise of temporary possession powers where necessary. We will respond on that—and in the meantime we set out in the policy document what we propose to do. There is something there about reinstatement.
On Amendment 104, certain special kinds of land, including land held inalienably by the National Trust, are afforded additional protection under the compulsory acquisition process. This additional protection provides that a compulsory purchase order may be subject to special parliamentary procedure when an objection is sustained to the relevant order by, for example, the National Trust, or when exchange land for that to be acquired cannot be given, perhaps because no suitable land is available. I agree with the noble Baroness, Lady Parminter, that National Trust land should benefit from additional protection under the temporary possession regime; this is also true of those other special kinds of land. The Government have set out their intention to do precisely that in a policy document; we propose to do that through regulations made under Clause 24. Paragraphs 48 to 51 of that document set out more details.
The Government’s proposed approach under temporary possession differs from that under compulsory acquisition. Where the temporary possession of special kinds of land is happening without any associated compulsory acquisition, the special parliamentary procedure would not apply. Instead, the temporary possession will be allowed only when the confirming authority is satisfied that it would not cause serious detriment to the owners and users. Such serious detriment could include, for example, irreparable damage to the land concerned, or blocking access to other land or assets. When both temporary possession and compulsory acquisition of a special kind of land is included in the same order, and the compulsory acquisition is subject to special parliamentary procedure, the temporary possession land would also be subject to the special parliamentary procedure. However, I have listened with great interest to the case made by the noble Baroness, Lady Parminter, who raises an important issue, and the Government will, therefore, give further careful consideration to it before confirming our approach, to which I have just referred.
Lord Young of Cookham
Lord Kennedy of Southwark
My Lords, I will be brief. In this group, I have Amendments 116, 117, 118 and 119. The first three seek to leave out “highway” on page 24, lines 14, 16 and 17, and insert “transport project”. We thought that would make the issue clearer. New Sections 6D(3), 6D(4)(a) and 6D(4)(b) in Clause 27 use “transport project” and I therefore did not understand why later in the same clause it was referred to as a highway scheme. Can the Minister explain why that is the case and if my amendments are not necessary? If they are, I hope he will accept them as it is odd to move from the wider and encompassing definition of transport project to the narrower definition of “highway”.
Amendment 119 seeks to provide further clarity by removing “announced”. In these sorts of schemes you get into arguments about when things were announced so we thought it would be much clearer to put,
“first proposed in consultation with the public”.
There will be an actual date on which a consultation is started and when papers and a clear plan are sent out. We thought this would be much better as we do not want disputes later because everyone is arguing about when the scheme was formally announced. That is the purpose behind the amendment and I look forward to the Minister’s response.
Lord Young of Cookham
My Lords, we have moved on to the no-scheme principle. The problem with this principle is that since it was first established it has been interpreted in a number of complex and often contradictory ways. Clause 27 is intended to clarify the position. It creates a statutory no-scheme principle and sets out a series of clear rules to establish the methodology of valuation in the no-scheme world. It also extends the definition of the scheme to include a relevant transport project in circumstances where land acquired in the vicinity for a regeneration or redevelopment scheme is facilitated or made possible by that project. We are extending the scheme because we want to ensure that an acquiring authority should not pay more for the land it is acquiring by reason of its own or someone else’s public investment.
I am grateful to the noble Lord, Lord Shipley, for explaining the need for Amendment 107. The Committee will have observed that it is similar to government Amendment 108, so I am pleased to say that I am in complete agreement with the noble Lord. It is entirely correct that increases, as well as decreases, in the value of the land caused by the prospect of the scheme should be disregarded.
Amendment 109 was also proposed by the noble Lord, Lord Shipley. He argues that the words “in particular” should be omitted from the introduction to the rules defining the no-scheme world as they imply that some other rules might also be in play. He argues that the rules set out in new Section 6A should be an exclusive list. The Government’s expectation is that in the vast majority of cases the application of the rules as set out will be sufficient to establish the no-scheme world. There may, however, be rare cases in unforeseen circumstances where the Upper Tribunal considers that the application of the rules alone would not give a fair result. Retaining the phrase “in particular” gives the tribunal sufficient flexibility in these rare cases to fall back on the underlying no-scheme principle set out in new Section 6A(2) and its own common sense to arrive at a fair outcome. While I appreciate the noble Lord’s point about the need for clarity, the Government’s view is that the Upper Tribunal should retain this flexibility in order to reach a fair outcome in such unforeseen circumstances.
With Amendment 111, tabled by the noble Lord, Lord Shipley, and government Amendment 112 we now move to consideration of the rules themselves. The noble Lord, Lord Shipley, argues that Rule 4 is unnecessary and should be omitted. The Government’s view is that it remains necessary in order to complement Rule 3. Rule 3 assumes that there is no prospect of the same scheme or any other project to meet the same or substantially the same need as the scheme underlying the compulsory purchase. Rule 4 assumes that there is no prospect of any other scheme taking place on the land concerned. As currently drafted, this is too wide, so Amendment 112 restricts Rule 4 to disregarding only those schemes that could be undertaken only by the exercise of statutory functions or compulsory purchase powers. This means that the prospect of schemes brought forward by the private sector would still be considered as part of the no-scheme world. This is a fine point of valuation practice. In the light of what the noble Lord said, I think that the Government should further consider this issue very carefully with the expert practitioners who may conceivably have been briefing the noble Lord to find a solution.
Amendments 116, 117 and 118 were tabled by the noble Lord, Lord Kennedy. New Section 6D(6) specifies that when the scheme to be disregarded under Rule 3 is a highway scheme, the reference to “any other project” includes another highway scheme to meet the same need as the actual scheme. This provision reflects the planning assumption in Section 14(5)(d) of the Land Compensation Act 1961. It is important that the assumptions for the no-scheme world and the planning assumptions that should be applied in that no-scheme world should be consistent. The current Section 14 was substituted by the Localism Act 2011. A similar provision was added to the original version of Section 14 by the Planning and Compensation Act 1991. The noble Lord put forward a powerful case that this clarification could apply equally to other transport projects. If it did, Section 14 would also need to be amended to keep the two sets of assumptions in step. I think that this is another issue which the Government should reflect on with expert practitioners.
Turning to the definition of the scheme that must be disregarded before compensation may be assessed, government Amendments 113, 114 and 115 make some small adjustments in the context of the extension of the scheme to relevant transport projects. These have arisen from discussions between the Government and the Greater London Authority and Transport for London, which have only recently been concluded. I am very happy to give details if noble Lords would like them, but as they are relatively small adjustments, I propose to skip that part of the text.
I now return to the amendments tabled by the noble Lord, Lord Kennedy. Amendment 119 seeks to clarify new Section 6E(3) which disapplies Section 6E for land bought after a relevant transport project was announced but before this Bill was published. If such land were to be included in a redevelopment or regeneration project in the vicinity of that relevant transport project, it would be valued as if the relevant transport project was not part of the scheme to be disregarded.
The noble Lord’s amendment is much more specific than the Bill as currently drafted. The Government’s view is that such precision may not be necessary. The provision refers to an event that has already happened, and it is quite possible that a project may have been announced in some other way than that specified by the announcement. If so, it would be unfair to restrict this provision because the announcement did not fit within the somewhat narrow definition proposed.
However, having said that, it might be possible to clarify, perhaps in guidance, exactly what is meant by an announcement. That is certainly something that I would like to reflect on. I invite the noble Lord, Lord Shipley, to withdraw Amendment 107.
Lord Shipley
My Lords, I beg leave to withdraw Amendment 107. I look forward to reading carefully in Hansard what the Minister has said, with a view to potentially coming back to this on Report.
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
“(a) section 333ZA of this Act, and(b) paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980,”
Lord Young of Cookham
My Lords, we now move on to Clause 31, which deals with the joint acquisition of land by the Greater London Authority and Transport for London, and whose purpose I will briefly explain.
At the moment, for the GLA to bring forward a comprehensive redevelopment scheme in London involving both transport and other development, two compulsory purchase orders are needed: one promoted by the Greater London Authority for the regeneration or housing elements of the scheme, and the other promoted by Transport for London for the transport or highways elements of the scheme. This division makes no sense. It adds complexity and delay to the process and causes confusion among those most affected. Clause 31 removes this unnecessary division and allows the Greater London Authority to promote joint compulsory purchase orders with Transport for London and vice versa. It inserts new Section 403A into the Greater London Authority Act 1999, which enables either the Greater London Authority or Transport for London, or both, to acquire all the land needed for a joint transport and regeneration or housing scheme on behalf of the other.
The government amendments make two changes to the provisions as currently drafted. Amendments 120, 121 and 123 enable the Greater London Authority to promote a joint compulsory purchase order with Transport for London using Transport for London’s compulsory purchase powers as a highway authority under the Highways Act 1980 in addition to its general compulsory purchase powers under the Greater London Authority Act 1999.
Government Amendment 124 delivers the second change. New Section 403B of the Greater London Authority Act 1999 will enable a mayoral development corporation to promote a joint compulsory purchase order with Transport for London for a joint transport, including a highway, and regeneration project as an alternative to the Greater London Authority itself. Having set up a mayoral development corporation to regenerate an area, such as at Old Oak Common, the GLA would not normally seek to use its own powers in that area. I hope the Committee will agree with me that these are sensible provisions. With that explanation, I beg to move government Amendment 120.
Lord Kennedy of Southwark
My Lords, I have Amendments 122, 125 and 126 in this group. I will speak to them very briefly and look forward to the noble Lord’s response to the points I raise. Amendments 122 and 125 seek to make the situation clearer and to avoid the suggestion that a beneficial interest may exist, by removing the words,
“on behalf of the other”.
We do not think those words are necessary, and I propose to remove them in Amendments 122 and 125.
Amendment 126 would insert a new subsection into Clause 32, which would ensure that the GLA, TfL or a mayoral development corporation has the power to acquire land compulsorily for purposes under the Housing and Planning Act if it was previously able to do that under Sections 403A and 403B of the Greater London Authority Act 1999. I hope that we again get a positive response from the Minister accepting that I have highlighted an important issue to which, if nothing else, the Government will respond on Report.
Lord True (Con)
I see the wisdom of what is proposed in these amendments, reinforced by government Amendment 124, where an MDC is involved. I take it that it means only one compulsory order so that TfL is able to acquire land to advance housing projects, et cetera.
This may be my ignorance or otiose, but it appears that the way that this is drafted, based on the Greater London Act, TfL could exercise this new authority only in concert with the GLA or an MDC. However, there are other development authorities and planning authorities in Greater London: the London boroughs. I can envisage circumstances where there is neglected land alongside on a red route where TfL is the highways authority and a borough has an interest, but it may be too small to attract the interest of the Mayor of London. I simply raise the question to seek elucidation. It may not be necessary. Will it be possible when this is liberalised for TfL to use this power in concert with a borough without needing to go via the GLA or to set up a mayoral development corporation?
TfL gets cross when I say this in your Lordships’ House, but it is not always the most nimble authority when it comes to development. Some boroughs might be able to encourage it a little. I do not expect an answer now, but perhaps my noble friend will consider the need for such flexibility if TfL is to be given this new partnership power to acquire.
Lord Young of Cookham
My noble friend Lord True invites me to go way beyond my negotiating remit by extending to London boroughs the powers under the clause, which is intended to remove an existing duplication. However, I will of course consider his suggestion.
Lord Kennedy of Southwark
The noble Lord, Lord True, makes an interesting point. I am a member, although not the leader, of another London borough council. I think he makes a valid point which the Government could look at.
Lord Young of Cookham
It is indeed a valid point, but it goes wider than the narrow issue before us. As a former member of a London borough, albeit in 1968, I have an interest in enabling the boroughs to fulfil their full potential. I shall make some inquiries and write to my noble friend.
I thank the noble Lord, Lord Kennedy, for tabling Amendments 122, 125 and 126. They deal with two different clauses—Clauses 31 and 32—but as Amendment 126 is consequential on Amendments 122 and 125, I shall deal with them together.
I shall briefly explain what Clause 31 does. The Housing and Planning Act 2016, which will be fresh in the memory of many Members of the Committee, extended the statutory power to override easements and restrictive covenants when undertaking development to all bodies having compulsory purchase powers. Clause 32 amends this power to ensure that it operates as intended for the GLA and Transport for London and brings land acquired by their landholding subsidiary companies within the scope of the powers so that development on that land is not hindered.
I turn to the noble Lord’s Amendments 122 and 125. The Government’s intention in bringing forward the measure in Clause 31 is to allow the Greater London Authority or a mayoral development corporation and Transport for London to use their powers more effectively by allowing them to promote joint orders, as I explained. The amendments the noble Lord is proposing go beyond that and are not quite as innocuous as the noble Lord implied. They would effectively allow both organisations to acquire land for purposes for which they have no statutory power. For example, they would allow Transport for London to acquire land compulsorily for housing or regeneration purposes. This raises broader issues about competence. For those reasons, the Government do not think they are appropriate. It is a key principle of a compulsory purchase system that acquiring authorities should be allowed to acquire land by compulsion only for purposes associated with their statutory functions. Housing is not a statutory function of Transport for London.
The noble Lord’s Amendment 126 relates to the power to override easements in the Housing and Planning Act 2016 and appears to be consequential on Amendments 122 and 125 being acceptable, which, for the reason I have outlined, I am afraid they are not. I know it will come as a disappointment, but I invite the noble Lord, Lord Kennedy of Southwark, not to press Amendments 122, 125 and 126, for the reasons that I have given.
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
“403B Acquisition of land by MDC and TfL for shared purposes(1) This section applies where a Mayoral development corporation and Transport for London agree that the purposes for which they may acquire land compulsorily under—(a) section 207 of the Localism Act 2011, and(b) paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980,would be advanced by one or both of them acquiring land for a joint project.(2) The purposes for which the Mayoral development corporation may acquire land compulsorily under section 207 of the Localism Act 2011 are to be read as if they included the purposes for which Transport for London may acquire land compulsorily.(3) The purposes for which Transport for London may acquire land compulsorily under paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980 are to be read as if they included the purposes for which the Mayoral development corporation may acquire land compulsorily. (4) The Mayoral development corporation and Transport for London may agree that one of them is to acquire land on behalf of the other.(5) Where subsection (4) applies, a compulsory acquisition is to proceed under—(a) section 207 of the Localism Act 2011 if it is agreed that the Mayoral development corporation will acquire the land, or(b) paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980 if it is agreed that Transport for London will acquire the land.(6) Subsection (7) applies where—(a) the Mayoral development corporation and Transport for London both propose to acquire land compulsorily for a joint project, and(b) the proposed compulsory acquisitions require authorisation by different confirming authorities.(7) The proposed compulsory acquisitions are to be treated as requiring the joint authorisation of the confirming authorities.(8) The Mayoral development corporation or Transport for London may acquire land by agreement for the same purposes as those for which that body may acquire land compulsorily by virtue of subsection (2) or (3).(9) The joint project mentioned in subsection (1) is to be treated as the scheme for the purposes of the no-scheme principle in section 6A of the Land Compensation Act 1961 (impact of scheme to be disregarded when assessing value of land for compulsory purchase).””
Lord Kennedy of Southwark
My noble friend Lord Beecham and I fully support the amendment proposed by the noble Lord and look forward to a positive response from the Government on it.
The noble Lord mentioned Millwall Football Club. A couple of weeks ago, when the noble Lord, Lord Young, was speaking to an order on overview and scrutiny committees in combined authorities, I put it on record that I did not think the council got it quite right, to say the least. Thankfully the CPO has now been withdrawn and the council has made it clear that whatever goes ahead in future will do so only with the involvement and agreement of the club, local businesses and the local community. I was very pleased with that, and pay tribute to my overview and scrutiny colleagues for their work to prise information out of the council to enable them to convince the mayor and the cabinet that that was the way to proceed. I also pay tribute to the campaigners, fans, supporters and the club. We certainly had a lot of unhelpful publicity in recent weeks, but overview and scrutiny, in particular, did a very good job.
Lord Young of Cookham
My Lords, the noble Lord, Lord Cameron, argued eloquently for a comprehensive review of the compulsory purchase system, supported by the noble Lord, Lord Kennedy. I listened to the very pertinent questions that the noble Lord, Lord Cameron, said needed to be addressed, including international comparisons, looking at marriage values of freehold and leasehold and all the other issues, and I read the first line of his amendment, which states that by the end of next year we have to complete a review and bring forward proposals. It seems to me a mammoth task to embrace all the questions that he has raised—of course there may be others—within a very challenging timescale.
The advice that I have is that, were we to undertake this review, it would take three years and we would end up with 250-plus clauses. I do not know about other members of the Committee, but 24 CPO clauses seems to me quite a lot. Then there would be a number of schedules. There is no realistic prospect of doing that within the timescale that the noble Lord suggests. However, I recognise that there is a strong desire among many for the compulsory purchase system to be simplified. We have heard speeches to that effect during our proceedings. As my honourable friend the Minister for Housing and Planning said in the other place, he has some sympathy with that, but, as I said a moment ago, a comprehensive review would be a huge undertaking. While the Government do not rule it out completely, we would need very careful consideration before we took it forward, and there would need to be clear consensus on its terms of reference and objectives.
I appreciate that this does not go nearly as far as the noble Lord has suggested, but the Government have been tackling specific issues within the CPO regime which practitioners have identified as causing problems, and we have tried to do this in the Bill by introducing the temporary CPO processes and rationalising the Greater London Authority and TfL powers, as well as by clarifying the no-schemes valuation process. We hope that that will make a real, practical difference on the ground and allow the compulsory purchase system to operate more effectively.
It is relevant to mention briefly the White Paper published yesterday, Fixing Our Broken Housing Market, because it flags up two further areas, which I am sure that the noble Lord would want to add to his list. First, there is the role that the CPO could play in helping to kickstart development on stalled housing sites. The White Paper sets out our intention to consult on new guidance encouraging local authorities to use their existing compulsory purchase powers to support the build-out of stalled sites. Secondly, the White Paper sets out the Government’s intention to investigate whether auctions, following the taking of possession of the land, are sufficient to establish an unambiguous value for the purposes of assessing compensation payable to the claimant when the local authority has used its compulsory purchase powers to acquire the land. Furthermore, the White Paper also makes it clear that we will continue to keep compulsory purchase under review and notes the Government’s willingness to consider representations on how the process might be reformed further to support development.
As I said, we have an open mind on the need for further reform—but I hope that, in the meantime, noble Lords will agree that we should not delay progress on delivering the reforms that we already have in hand, including those in the Bill. So although I have enormous sympathy with the noble Lord’s amendment, it would be unrealistic to expect the Government to support it.
Lord Cameron of Dillington
My Lords, I thank the Minister for his response and the noble Lords, Lord Kennedy and Lord Beecham, for their support. The Minister seemed to hint that he is willing to accept the principle of the amendment; that is how he started off. I accept that it might take longer than we had anticipated. To be honest, until I came to write my few words, I did not know how many questions I was going to find in the maelstrom of information that there is out there. I believe that it really would be worth doing, if only to consolidate the legislation list that I read out. As the Minister rightly said, there are probably even more questions than those that I discovered. I look forward to further conversations on this point and hope that, sooner rather than later, the Government will address this area with seriousness. I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 128 is grouped with 129, both of which stand in my name.
Amendment 128 seeks to clarify the application of Section 31 of the Housing Act 1985 to TfL or its subsidiaries to dispose of their surplus land for housing development where that is considered appropriate as long as the price obtained is,
“having regard to all the circumstances of the case … the best that can reasonably be obtained”.
The amendment uses the wording of Section 31 of the Housing Act 1985 and contains a restriction in paragraph 29 to Schedule 11 of the GLA Act 1999 to ensure that the powers to sell and develop land for housing are consistent in this context. Amendment 129 is similarly worded and seeks to ensure that there is consistency between the TfL and the GLA in this regard. I look forward to the Minister’s response. I beg to move.
Lord Young of Cookham
My Lords, this will be my last contribution to this exchange. I am happy to end on a more consensual note than was the case on some of the earlier contributions.
Amendments 128 and 129 in the name of the noble Lord seek to make new provision in the Greater London Authority Act 1999, which would amend the powers of Transport for London and the GLA to dispose of land.
Amendment 128 seeks to give Transport for London the flexibility to dispose of land for housing, even if a higher value use was available, provided the best consideration reasonably obtainable for housing use had been achieved. To support this aim, Amendment 128 would also remove the requirement for TfL to,
“act as if it were a company engaged in a commercial enterprise”,
when disposing of land for housing.
Amendment 129 would make related provision in respect of the GLA. It would enable the GLA to dispose of land for housing without obtaining the Secretary of State’s consent, even if a higher value use was available, provided that the best consideration reasonably obtainable for housing use had been achieved.
I am very sympathetic to the intention of these amendments of providing flexibility to ensure that we can prioritise land for housing development. However, the legal issues involved are not entirely straightforward, and I think the public interest would be best served if a meeting was held between the Government, the GLA and TfL before Report to consider this further. With the reassurance that I will facilitate such a meeting, I hope that the noble Lord might be prepared to withdraw the amendment.
Lord Kennedy of Southwark
I thank the noble Lord very much for that positive response to these two amendments. On that basis, I am very happy to withdraw the amendment and look forward to a very fruitful meeting between the various parties.
Lord Beecham (Lab)
My Lords, in moving Amendment 129A which stands in my name, I wish to speak also to the proposition that Clause 38 should stand part of the Bill. Both these provisions stem again from the report of the Delegated Powers and Regulatory Reform Committee. My amendment refers specifically to a requirement for the Secretary of State to consult Welsh Assembly Ministers—the noble Lord might be included for this purpose—before making regulations under Clause 38, or Section 38 as it will be when the Bill is enacted. The committee refers to the wording of Clause 38, which confers power on the Secretary of State to make such provision as he,
“considers appropriate in consequence of any provision”,
in the Bill. That is a very wide-ranging power. It includes, as the committee points out, Acts of Parliament of course, but also measures or Acts of the National Assembly of Wales. A justification of a kind is provided in the accompanying memorandum, which the committee quotes as concluding that,
“it is considered prudent for the Bill to contain a power to deal with these in secondary legislation”.
But as the committee points out,
“the Bill makes no provision for any procedure in the Assembly when the power is used to amend primary or secondary legislation enacted by the Assembly or Welsh Ministers … there is not even a duty to consult Welsh Ministers when amending Welsh legislation”.
That is an extraordinary position to have got into. The committee goes on to point out:
“Clause 2 of the Wales Bill provides that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly”.
However, that appears to be feasible under this Bill as it presently stands. As the committee notes:
“The Constitution Committee have raised similar concerns”,
and it therefore considers that the power should be amended to impose,
“an obligation to consult Welsh Ministers”.
That is what my Amendment 129A does.
There is a proposal to remove the whole of Clause 38—
Lord Bourne of Aberystwyth
With respect to the noble Lord, Lord Beecham, that is in a different group.
Lord Beecham
I beg your pardon—it is grouped with this on the paper I have here. I will not make that point now but will deal with it when we get to that group. I beg to move Amendment 129A.
Lord Thomas of Gresford (LD)
My Lords, I speak in support of the noble Lord, Lord Beecham, on Amendment 129A. I also speak, as a member of the Delegated Powers and Regulatory Reform Committee, to express our surprise that there was no provision even for consultation, with the Welsh Assembly, when proposed changes to an Act or secondary legislation are made. As I understand it, if it is an Act, there would normally be a legislative consent Motion; if it is secondary legislation, a consent Motion. That was the original provision, and I assume it is still the same. The noble Lord, Lord Bourne, fortunately, is an expert in this field.
I can only assume that this is an accidental omission, as I cannot see any policy in it. It seems to me ludicrous that a Secretary of State could, with a stroke of the pen, without any consent in Wales and without any consultation, simply amend the Act. I shall speak further on the clause stand part debate in a moment.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Beecham, for moving this amendment and the noble Lord, Lord Thomas of Gresford, for speaking in relation to this issue as well. To deal with the situation in its entirety, I will need to look back to the provisions in the Wales Act 2017. The noble Lord, Lord Thomas of Gresford, may recall that we had a similar issue there—I think he was in his place when we discussed it. The noble and learned Lord, Lord Judge, will certainly recall it
To put this in context, first, I make the point that any amendments here—this anticipates what we will be discussing in the next debate—have to be consequential, which limits it to matters that arise in the legislation and are consequential. Secondly, in these cases there are always minor issues. I think this has universally been the case—I have yet to be shown an example otherwise, and I have checked quite a few. In the context of the Wales legislation, it was anticipated that occasionally the wrong terminology would be used. For example, parish councils exist in England, but they are community councils in Wales, and this is about things of that nature, which one would not wish to have to bring back for primary legislation. That is not the sort of issue that should be in primary legislation.
In the context of the Welsh position, it is also worth noting that not only is there power in the Wales Act to amend legislation in the National Assembly for Wales, but it also operates in the other direction, giving the National Assembly—effectively, Labour Welsh Ministers —the opportunity to amend our legislation. I appreciate that not all noble Lords were steeped in the process of the Wales Bill. In practice, as is confirmed by an exchange of letters between the Secretary of State for Wales and the First Minister, Carwyn Jones, on which I hope to expand in a letter to noble Lords summing up what has happened in today’s Committee, where we identify an issue that needs a minor amendment, we notify both the First Minister and the Presiding Officer, the Speaker in the National Assembly, who, if she wishes —it is a she at present—can draw it to the Assembly’s attention. Of course, under devolved arrangements, it is a matter for her and the National Assembly as to what they do. So it is a reciprocal arrangement.
I anticipate that the noble and learned Lord, Lord Judge, will say that, from a legal purist’s point of view, that is not ideal, but from a pragmatic point of view of dealing with minor amendments—if noble Lords can find anything major that is dealt with in legislation of this nature, I should be very interested to see it, because that would be an outrage. It is a tidying-up exercise. I hope that we can translate this to the Bill. I am happy to look at this point and deal with it in correspondence, but it is a common-sense approach to what is a relatively minor issue. With that, I ask the noble Lord to withdraw his amendment. I am happy to discuss it with him and other noble Lords afterwards, but I put the substance of how this operates in the context of Wales, because I think there is a read across, and we would do something identical, mutatis mutandis, under the Bill.
Lord Thomas of Gresford
My Lords, if that is the case and it is the practice to write to the First Minister and Presiding Officer of the Assembly, why not have that in the Bill so that there can be no slipup, if that will inevitably happen and is required to happen? It seems common sense that it should be in the Bill. An exchange of letters outlining a practice is in no way a safeguard against the arbitrary use of the power by the Secretary of State, widely drawn as it is.
Lord Bourne of Aberystwyth
My Lords, the noble Lord knows as well as I do the difference between convention and provision in statute. If everything that had been discussed in Committee on the Bill will put in statute, it would be a much longer and more complex piece of legislation. This is about finding the appropriate place to deal with it. As I said, I am happy to share the correspondence and discuss it further, but I do not think it should appear in the Bill.
Lord Beecham
I obviously cannot proceed to a vote on the amendment, but the Minister seems to ignore the explicit statement of the Delegated Powers Committee that,
“the power conferred by clause 38 of this Bill is inappropriate to the extent that it allows the Secretary of State to amend Assembly legislation without at least an obligation to consult Welsh Ministers”.
If that is the practice, I agree with the noble Lord, Lord Thomas, that it should be codified and expressed in the Bill. What is the problem?
Lord Bourne of Aberystwyth
My Lords, with respect, it is asking not for that but for an obligation to consult, and I have said that that is a reasonable request. It is effectively what is happening under the Wales legislation. I have said that we anticipate doing exactly the same, mutatis mutandis, under the Bill, so that, via the Presiding Officer, we are consulting.
Lord Thomas of Gresford
Can the Minister tell us whether there is any provision in a Welsh Bill intended to amend English legislation, or legislation at Westminster, where no consultation is required, in the same way—mutatis mutandis?
Lord Bourne of Aberystwyth
I am sorry, I have made the position clear. I am not sure what point the noble Lord is seeking to make. I am happy to discuss this further. I invite the noble Lord, Lord Beecham, to withdraw the amendment on that basis, but I do not think I can go further than that at the moment.
Lord Beecham
My Lords, there is a certain irony in a Henry VIII clause applying to Wales, given that the Tudor monarchy was based on Welsh lineage. I am also reminded of the lines of TS Eliot in The Hollow Men:
“This is the way the world ends
Not with a bang but a whimper”.
The Bill is ending in the reverse order. We have had a generally mild and constructive discussion for the past four days in Committee, but we end with something of a bang, because if the Government stick to their position, what is being perpetrated in the clause will lead to significant disagreement.
It is particularly important that the Government should listen to advice from the noble and learned Lord, Lord Judge. Others of us have our own views—we perhaps have a political approach, even those of us who are lawyers of a senior vintage, if I may put it that way. To hear the noble and learned Lord’s critique must surely give the Government pause for thought. It is simply unacceptable to insist on a procedure that leaves so much power in the hands of the Government effectively to ignore the obligations which ought to apply in relation to the Welsh Assembly, in this case, but in general to the operation of secondary legislation. In the few years that I have been here, that has time and again been shown to be defective as a mechanism for sustaining proper parliamentary consideration at the appropriate time of important measures with significant implications for various aspects of public policy.
I hope that the Minister will take this back and respond constructively, or secure permission to do so, to the views of this Committee and those of the Delegated Powers and Regulatory Reform Committee and, it appears—for I had not noticed its report—to take the views of the Constitution Committee into account. Obviously, he cannot give us any firm commitments tonight but I hope that, after consulting his colleagues, he will be able to satisfy the House by indicating that. Otherwise, it will undoubtedly have to go to Report and, if necessary, a vote at Report. I hope that we can avoid that because, on the whole, the Bill has proceeded in a fairly consensual way. Most of us have endeavoured to work with the grain of the Government’s policy. It would be a shame if that were in contrast with a rigid decision to stick with very unsatisfactory drafting right at the end of the Bill.
Lord Bourne of Aberystwyth
My Lords, first, I thank the noble Lord, Lord Beecham, very much for his constructive approach and say that it is certainly not my intention not to engage on this between Committee and Report. I think that I indicated that on the previous amendment, which he so eloquently moved. I am very happy to engage with noble Lords.
I would like to say one or two things in response to the debate, and I thank the noble and learned Lord, Lord Judge, who has been totally consistent on this issue and obviously speaks from great experience. Contrary to what my noble friend Lord True thought there is a history to this, not just from going back as far as Henry VIII. Successive Governments have indulged in this. I appreciate that that does not make it right, but I have done a little research with my team. The Housing and Regeneration Act 2008, the Local Democracy, Economic Development and Construction Act 2009 and the Greater London Authority Act 1999, just in this area, have powers wider than those in the Bill. My noble friend Lady Cumberlege referred to how important the Localism Act is; I quite agree but there are wider powers in that Act, which was passed under the coalition Government. I appreciate that that does not make it right, but I want to establish the point that a certain degree of consistency would be welcome on these issues.
That said, I am very happy to engage positively in looking at how we move forward on this matter. I very much echo what the noble Lord, Lord Beecham, said about the way that the Committee has proceeded in a consensual way for the most part. We have not always agreed on issues but we have certainly disagreed agreeably as we have gone through the Bill. I am certainly happy to engage with noble Lords between now and Report in looking at this matter.
We have to keep this in perspective. However, if noble Lords can provide examples of where this provision has been misused in relation to any of that legislation, which, as I say, goes back a considerable way, or examples of where any Government have used it improperly, that would strengthen the case for looking at it further. This measure also does not give the Secretary of State the power that has been suggested; it is subject to an affirmative resolution, which means that it has to be presented to both Houses with a full explanation and carried by both Houses. That said, I understand the points that have been made during the debate. I thank those who have participated: the noble Lord, Lord Thomas of Gresford, my noble friend Lord True and the noble Lords, Lord Stunell and Lord Shipley, as well as my noble friend Lady Cumberlege and the noble and learned Lord, Lord Judge, who put their names to this measure. I also thank the noble Lord, Lord Beecham. Given the assurance I have just provided, I ask noble Lords not to press this measure.
Baroness Cumberlege
My Lords, I thank my noble friend for his response and the noble Lord, Lord Beecham, for his comments. We are trying to get a consensus. During our first debate in Committee, I was described as the hard cop. I really am hard as regards this issue. We have to think very carefully about including a clause such as this. The noble and learned Lord, Lord Judge, said that it was simply not justified, that there had been no attempt to justify it and that there was no control over it. He suggested that this clause could enable a future Secretary of State to repeal a whole Act of Parliament in the future. However, I totally endorse what the noble Lord, Lord True, and other noble Lords have said about the integrity of my noble friend the Minister in the Lords.
My noble friend has said that we ought to look at past experience. I am not interested in past experience. I am interested in the future. I am interested in this Bill and what could be done by a Secretary of State who does not have much integrity. Such a Secretary of State could wipe out the whole of this Bill. That is not respectful to Parliament. We are parliamentarians. We shape, discuss and put forward amendments. We agree and we disagree. In the end, we hope that we produce legislation that is good for this country. My noble friend and I had a very brief conversation outside the Grand Committee in which he talked about successive Governments. I say gently that just because a person has a bad habit does not mean that that habit should be condoned. It should be checked and better behaviour should be encouraged. I encourage the Government to mend their errant ways and follow the path of the righteous. To be righteous is to respect Parliament and not introduce these sorts of dangerous clauses. The noble and learned Lord, Lord Judge, used the words “dangerous” and “unjustified”. Nobody has spoken in favour of this clause. When I read in Hansard the words used by judges and learned people who know the whole system and have worked in Parliament with the Constitution Committee and so on, it sends shivers down my back.